Oracle Lawyer Defends Efforts To Subpoena H-P’s CEO

Why is Oracle spending so much time trying to drag Hewlett-Packard’s new CEO into the software company’s trial against SAP? It’s not what many people think–a stunt to embarrass a competitor–an Oracle lawyer insists.

Associated Press

Leo Apotheker, now Hewlett-Packard’s CEO

Oracle CEO Larry Ellison has ridiculed H-P’s recent decision to hire former SAP chief executive Leo Apotheker as its new chief, and tried to paint Apotheker as culpable in the copyright infringement carried out by the discontinued SAP unit TomorrowNow. Ellison’s statements came amid new tensions between his company and H-P, a longtime partner; Oracle this year started competing with H-P in hardware after it purchased Sun Microsystems, and fueled further resentment at H-P in September by hiring its ousted CEO, Mark Hurd.

But David Boies, a high-profile litigator representing Oracle, on Monday said its desire to call Apotheker as a witness in the SAP case has “nothing to do with Hewlett-Packard.” He said Apotheker was at the “center of the infringement” while at SAP, receiving “individual reports” on many of the actions by TomorrowNow at issue in the case.

“Because of his role, we think it’s important for the jury to be able to see him live,” Mr. Boies said during a press conference following a day of trial in a federal court in Oakland, Calif.

Boies also discussed Oracle’s unsuccessful attempts to serve Mr. Apotheker with a subpoena to appear in court, saying that “he’s trying real hard not to let us find him.”

A spokesman for SAP said whether Apotheker appears in person is “tangential” to the case and that Oracle is “grossly overstating the role of Leo Apotheker” in the TomorrowNow affair.

“It’s a blatant attempt to use the trial to discredit H-P and to further their own rivalry against H-P,” the SAP spokesman said.

An H-P spokeswoman declined to comment on the Oracle attorney’s statements about Apotheker. Earlier, she reiterated a prior statement that “Oracle’s last-minute effort to require him to appear live at trial is no more than an effort to harass him and interfere with his duties and responsibilities as H-P’s CEO.”

SAP has accepted liability for and admitted to contributing to TomorrowNow’s actions. But it disagrees sharply with Oracle’s estimate of damages SAP should pay as a result of the unit’s misdeeds.

Oracle has raised the possibility that the court may hear testimony from Apotheker in a previously recorded video deposition. Boies is no stranger to that form of testimony; in 1998, while representing the Justice Department in its high-stakes antitrust trial against Microsoft, the lawyer successfully used excerpts of taped testimony from Bill Gates to raise questions about his credibility and paint him as angry and defensive.

Another attorney for Oracle, Geoffrey Howard, declined to say whether Oracle would play the video testimony from Apotheker–taken in 2008–if the H-P CEO doesn’t show. “We’re still hopeful that we’re going to get him live,” but “if we don’t, we’ll have to decide what evidence we include in our remaining time,” Mr. Howard said.

He added that Oracle would continue to try and serve Apotheker after Oracle rests its case this week. If Apotheker agrees to testify “then we will certainly ask the court to let him do that.”